Basic Presumption

Basic Presumption

This provision in state lemon laws creates the basic presumption or qualification for lemon law relief by defining what constitutes a reasonable number of repair attempts or days out of service before a vehicle is presumed to be a lemon.  The majority of state lemon laws provide that 3 repair attempts for a defect that substantially impairs the safety, use or value of the vehicle or 30 days out of service qualifies as a lemon.   However, a big loophole in some states is giving the manufacturer one final attempt to repair the problem. South Dakota has the worst provision in giving a manufacturer a final repair attempt after 4 repair attempts or 30 days out of service in which the manufacturer has up to 21 more days to remedy a lemon after notification from the consumer.  In some states, the consumer can avoid stretching of the basic presumption by notifying the auto maker of the non-conformity after the second repair attempt so the third attempt will be done by the manufacturer and can be considered the final attempt.  The best basic presumption provision is one like that of New Jersey which creates a presumption after 3 repair attempts or 20 calendar days out of service.  Although New Jersey gives the manufacturer one final repair attempt within 10 calendar days of the notice, the statute wisely provides that the consumer can give the required notice to the manufacturer after the second repair attempt or 20 days out of service.

Model Statute:

New Jersey Statutes Annotated
56:12-33 Presumption of inability to correct nonconformity; written notification.

a. It is presumed that a manufacturer, or, in the case of an authorized emergency vehicle, the manufacturer, co-manufacturer, or post-manufacturing modifier, or its dealer or distributor, is unable to repair or correct a nonconformity within a reasonable time if, within the first 24,000 miles of operation or during the period of two years following the date of original delivery of the motor vehicle to the consumer, whichever is the earlier date , or in the case of a farm tractor, during the period of two years following the date of original delivery of the motor vehicle to the consumer: 
(1)Substantially the same nonconformity has been subject to repair three or more times by the manufacturer, co-manufacturer, or post-manufacturing modifier, or its dealer or distributor, other than a nonconformity subject to examination or repair pursuant to paragraph (3) of this subsection because it is likely to cause death or serious bodily injury if the vehicle is driven, and the nonconformity continues to exist; 
(2)   The motor vehicle is out of service by reason of repair for one or more nonconformities for a cumulative total of 20 or more calendar days, or in the case of a motorhome, 45 or more calendar days, since the original delivery of the motor vehicle and a nonconformity continues to exist; or
(3) A nonconformity which is likely to cause death or serious bodily injury if the vehicle is driven has been subject to examination or repair at least once by the manufacturer, co-manufacturer, or post-manufacturing modifier, or its dealer or distributor, and the nonconformity continues to exist. 

b. The presumption contained in subsection a. of this section shall apply against a manufacturer only if the manufacturer has received written notification, or, in the case of an authorized emergency vehicle, the manufacturer, and co-manufacturer or post-manufacturing modifier, if known, or the dealer or distributor, has received written notification, by or on behalf of the consumer, by certified mail return receipt requested, of a potential claim pursuant to the provisions of this act and has had one opportunity to repair or correct the defect or condition within 10 calendar days following receipt of the notification. Notification by the consumer shall take place any time after the motor vehicle has had substantially the same nonconformity subject to repair two or more times, or has been out of service by reason of repair for a cumulative total of 20 or more calendar days, or in the case of a motorhome, 45 or more calendar days, or with respect to a nonconformity which is likely to cause death or serious bodily injury if the vehicle is driven, the nonconformity has been subject to examination or repair at least once by the manufacturer, co-manufacturer, or post-manufacturing modifier, or its dealer or distributor, and the nonconformity continues to exist.